Thursday, November 29, 2007

What Employers Can Learn from the Boston Red Sox

Much has been written about the steps the Red Sox have taken to make the team successful. A few of the decisions could be implemented by employers with something less than a $143 million payroll.

The Red Sox identified minor league players the team expected to move up during the season and provided them with an orientation program to address everything from media relations to tipping of club house attendants. The same could be applied outside the baseball world by identifying employees with potential and then providing them with early tools to help them in the next level of their careers.

Curt Schilling could earn $2 million in bonuses if he meets certain weight goals. Although this is an extreme measure, many employers are seeing the benefits of employee wellness programs. Employer programs on weight loss, smoking cessation, and similar health topics can encourage a healthier workforce with the potential for fewer sick days and lower insurance costs (and a quicker fast ball).

The Red Sox have seen the value in their “older” players such as Tim Wakefield and Schilling and have entertained new ways to play to their strengths (such as a six-man rotation). With baby boomers approaching retirement age, critical skills will be leaving the workforce. Forward-thinking employers are looking for creative ways to retain older employees and/or train younger workers to be ready to fill the shoes of retiring workers.

Enjoy the off-season and remember . . . spring training games will begin in less than three months.

Monday, November 26, 2007

New Hampshire Civil Union

Attorney Polly Hall, a domestic attorney with our firm and I have been presenting talks around the State on the new Civil Union statute. Recently we did a presentation at a local university to discuss the statute that will go into effect January 1, 2008. It was well attended, and I think the people of New Hampshire are starting to really think about the new law and its impact on our state.

While the new law will give rights to civil union partners, it also comes with its drawbacks. Of note is the university's benefit program. I have been told that the university is thinking of treating same sex partners as they treat heterosexual partners. This means if a same sex couple is in a "domestic partnership," meaning they have not entered into a civil union, they will not be afforded the benefits of a couple joined in a legal union. Only same sex couples who enter into a civil union will be afforded benefits available to heterosexual married couples. As Attorney Hall and I discussed the new law, the audience began to understand the broad impact of the statute and I get the sense in the community that a lot of people will be watching to see how the new law impacts our State.

Wednesday, November 21, 2007

“Every Breath You Take . . . I’ll Be Watching You”

I recently attended a session on privacy in the workplace at the American Bar Association Labor and Employment Conference. Up until now, much of the talk has focused on email, and the trend in the courts has been to find that employees do not have a reasonable expectation of privacy in the use of workplace computers if the employer has distributed a policy reaffirming its right to inspect its own equipment.

Besides email, there are many other forms of technology that allow employers to watch what their employees are doing. One panelist showed us a radio-frequency identification (RFID) device that a hospital requires its employees to wear in order to track where they are while they are working in an effort to improve patient care. For example, if a patient complains that she has not seen a nurse for 24 hours, hospital administration can track the room history to see if anyone did visit the room during that period of time. Other employers have started using GPS devices to track the location of employees.

This scene easily could be set to the tune of The Police’s stalker song, “Every breath you take, every move you make . . . I’ll be watching you.” Although these devices have the potential to improve efficiency and the delivery of services, they also run the risk of invading employee privacy and deflating employee morale. Prior to implementing a surveillance or searching program, employers should:

1) articulate a legitimate business reason for the surveillance program,
2) use the most narrow surveillance program possible to meet the business need,
3) avoid systems that track employees when they are not working,
4) distribute a policy explaining the type of searching or surveillance utilized, and
5) consult with an attorney for advice specific to the particular program.

Thursday, November 1, 2007

Supreme Court on the Road

On October 25, 2007, the Supreme Court traveled to Bow High School to provide 600 high school students from a number of community schools the opportunity to hear two oral arguments. After the arguments the students were given an opportunity to question both the attorneys and the members of the Court. In advance of the argument, the Court asked local attorneys to visit the participating schools. I had the opportunity to attend the Bedford High School law class taught by Principal George Edwards in advance of the October 25th oral argument. The students were provided with a condensed version of New Hampshire Public Television, New Hampshire Outlook Program on the New Hampshire Supreme Court. They were also provided with the two Superior Court Orders on appeal and condensed versions of the two Briefs in each case.

The first case argued involved the jury’s decision to convict despite inconsistent testimony from the victim concerning the defendant’s identification. State of New Hampshire v. Sean Brown, 2006-0333. The trial court vacated the jury’s verdict based upon the unreliability of the evidence confirming the defendant’s identification. This appeal prompted a number of questions from the students over how disputed facts are handled in the courtroom and the role of the jury as opposed to the trial judge. This questioning also led to a discussion concerning the role of the trial court as opposed to the appellate court, whose role is limited to the review of legal errors and unsustainable exercises of discretion.

The second case involved an appeal concerning the trial court’s decision to consolidate several separate drug sales as part of a common scheme despite the defendant’s request to sever because of the prejudicial impact of cumulative bad acts. State of New Hampshire v. Michael Spinale, 2006-0872. This appeal generated questions from the students concerning the rules that govern the introduction of evidence at trial and in particular, why the Rules of Evidence prohibit introduction of evidence from unrelated prior acts given the potential prejudice that the jury might convict a defendant based upon prior bad conduct, which could be unrelated to the charge at issue.

The students also asked a number of questions about the accuracy of television law shows, such as Law & Order and they asked practical questions about how one goes about getting a case to the Supreme Court and how one prepares both the written Brief and how ones prepares for oral argument. The Supreme Court will issue its decisions affirming and or reversing these cases in approximately 3 months. The written decisions will appear as slip opinions on the Court’s web site at: